What left, right get wrong about VRA

With this week’s historic decision, the U.S. Supreme Court did not actually strike down Section 5 of the Voting Right Act (VRA), which mandates advance federal approval, or pre-clearance, of changes to election procedures in jurisdictions under the act’s coverage (Arizona, Alaska, the entire Deep South, almost all of Texas, parts of North Carolina, Florida, and Virginia, and scattered northern counties, primarily in the Bronx and Manhattan). But the justices made Section 5 inoperable by invalidating the formula in Section 4 that decides just what states and communities qualify for such aggressive oversight. And by making the future of preclearance depend on this thoroughly gridlocked Congress, the high court’s blow to Section 5 is fatal in practice — even if not in theory.

For all of the celebration on the political right, conservatives should view this ruling as a mixed blessing. Yes, it is a strike against a regionally discriminatory rule of law that has restricted Texas and South Carolina from implementing voter ID statutes that are perfectly legal in Kansas and Indiana — a law that distinguishes between the Bronx and the South Side of Chicago, despite their extremely similar history and registration patterns, and that somehow leaves out states like Indiana, which has a relatively large black voter base but a mediocre record of black voter participation. At the same time, the victory will only fuel the impression that Republicans are bent on suppressing minority voters. Another corrosive element will be added to the toxic mood of the national debate, where conservatives have already been weakened by a perception of race-baiting.

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Conservative legal activists would have been wiser to concentrate on revamping the other elements of the act that actually do much more damage to the proposition of a color-blind politics than Section 5 ever has. The truth is that ending preclearance is explosive, but still won’t alter the VRA’s evolution from an instrument of black voter participation to a prescription for rigged districts that look like spoils and quotas.

Here’s why. It is the much-overlooked Section 2 of the Act, whose entirely appropriate command that the relevant states refrain from passing election laws that discriminate against their minority citizens has swollen into a requirement that minorities be aggregated into legislative and congressional districts that are overwhelmingly dominated by their race. Without any foundation in the law’s text, courts and Department of Justice lawyers have hand-crafted a complex, rolling set of rules that leave a consistent result across the South: a sea of districts that are safely more than 60 percent black, sitting aside a larger ocean of districts that are more than 70 percent white. Even a slight rollback of the black percentages, say from 65 percent to 58 percent, is prohibited on the theory that such a contraction “dilutes” the African-American vote.